Villacampa v. Russell

• Decision Date: 14 March 1986
• Court: California Court of Appeals Court of Appeals
• Parties: Dolores VILLACAMPA, Plaintiff and Appellant, v. Thomas Elson RUSSELL et al., Defendants and Respondents. A030473.

Page 73

224 Cal.Rptr. 73

178 Cal.App.3d 906

Dolores VILLACAMPA, Plaintiff and Appellant, v. Thomas Elson RUSSELL et al., Defendants and Respondents.

A030473.

Court of Appeal, First District, Division 3, California.

March 14, 1986.

Jack L. Burnam, San Francisco, for plaintiff and appellant.

Joan V. Heidenreich, Law Offices of C. Donald McBride, San Francisco, for defendants and respondents.

BARRY-DEAL, Associate Justice.

Appellant filed an action for wrongful death against respondents Thomas Russell and R. Flatland, Inc., for the death of her former husband. The trial court determined as a matter of law that under Code of Civil Procedure section 377, appellant has no standing to bring a wrongful death action, and therefore there is no triable issue of fact. Appellant appeals the trial court's order granting summary judgment. We affirm.

Appellant and decedent were married in 1948 and had six children. Appellant has not been employed outside the home since 1968. In 1979 appellant filed a petition for dissolution of marriage, and an interlocutory judgment of dissolution was entered on February 20, 1980, which provided, inter alia, that decedent was ordered to pay appellant spousal support of $375 per month, to continue until decedent's death or remarriage, and that appellant receive one-half of decedent's pension fund. A final judgment of dissolution was entered on July 22, 1981.

On June 16, 1983, decedent was hit and killed by a truck driven by respondent Russell and owned by respondent R. Flatland, Inc. At the time of decedent's death, appellant was receiving $430 per month as her share of the pension, in addition to spousal support.

In her appeal from summary judgment, appellant contends that Code of Civil Procedure section 377 does not preclude a wrongful death action by a former spouse, and if it is construed to deny a cause of action to former spouses, that section violates equal protection of the law as guaranteed by the Fourteenth Amendment to the United States Constitution. Appellant also claims that respondents failed to comply with procedural requirements applicable to a motion for summary judgment.

Discussion

Code of Civil Procedure section 377, subdivision (a), provides that a cause of action for wrongful death may be maintained by the decedent's heirs or personal representatives on their behalf. Subdivision (b) of the statute defines heirs as (1) persons entitled to receive property of the decedent under the provisions of the Probate Code controlling intestate succession, and (2) if they were dependent on the decedent, the putative spouse, children of the putative spouse, stepchildren, and parents, and (3) minors if at the time of the decedent's death they had resided for the previous 180 days in the decedent's household and were dependent upon the decedent for one-half or more of their support.

Appellant is not included in any of these categories; a former spouse is not an heir under the Probate Code, nor is appellant a putative spouse or a minor. "It is well settled that the right to bring an action for the wrongful death of a human being is limited to the persons described in Code of Civil Procedure section 377. [Citations.]" (Steed v. Imperial Airlines (1974) 12 Cal.3d 115, 119, 115 Cal.Rptr. 329, 524 P.2d 801.)

Appellant urges, however, that Code of Civil Procedure section 377 be liberally construed to avoid the harsh consequences of denying former spouses a right of action for wrongful death. She notes the recent legislative amendments to section 377 which expanded the class of parties entitled to sue and contends that she is in a similar position to these parties and therefore should be so entitled.

The 1975 amendments added the putative spouse, children of the putative spouse, stepchildren, and parents to the class of persons who may sue for wrongful death if they were dependent on the decedent. The Legislature added stepchildren to this class to avoid the harsh result in Steed v. Imperial Airlines, supra, 12 Cal.3d 115, 115 Cal.Rptr. 329, 524 P.2d 801, in which a dependent stepdaughter, who lived with the decedent and believed that he was in fact her father, was denied a right of action for wrongful death because the statute limited the cause of action to heirs. (Stats.1975, ch. 334, § 2, p. 784.)

The inclusion of other parties by amendments in recent years shows that the Legislature was aware of the limitations imposed by Code of Civil Procedure section 377 and sought to expand the right of action to certain specified classes of persons. " '... "The failure of the Legislature to change the law in a particular respect when the subject is generally before it and changes in other respects are made is indicative of an intent to leave the law as it stands in the aspects not amended." [Citations.]' [Citations.]" (Garcia v. Douglas Aircraft Co. (1982) 133 Cal.App.3d 890, 894, 184 Cal.Rptr. 390.)

Moreover, this court is bound to follow the law declared by courts of superior jurisdiction. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455, 20 Cal.Rptr. 321, 369 P.2d 937.) In Steed v. Imperial Airlines, supra, 12 Cal.3d at page 119, 115 Cal.Rptr. 329, 524 P.2d 801, the California Supreme Court narrowly interpreted the definition of heirs in Code of Civil Procedure section 377 to those who would have been eligible to inherit from decedent's estate had he died intestate. The Legislature has not expanded the definition of heirs since the 1975 amendment defining heirs as those who would inherit under provisions of the Probate Code controlling intestate succession. Thus we are limited to a narrow interpretation of section 377 which does not include former spouses.

Appellant next contends that if Code of Civil Procedure section 377 denies a right of action for wrongful death to former spouses, the statute violates equal protection of the law.

The right of action for wrongful death is wholly statutory in origin. (Steed v. Imperial Airlines, supra, 12 Cal.3d at pp. 119-120, 115 Cal.Rptr. 329, 524 P.2d 801.) "[T]he limitation on those who may bring the action is one which is imposed by the Legislature and, absent a constitutional basis for departure from a clear expression of legislative intent, we are bound thereby." (Id., at p. 120, 115 Cal.Rptr. 329, 524 P.2d 801.)

Appellant suggests a constitutional basis for departure, asserting that exclusion of former spouses denies her equal protection of the law in violation of the Fourteenth Amendment to the United States Constitution. In Harrod v. Pacific Southwest Airlines (1981) 118 Cal.App.3d 155, 173 Cal.Rptr. 68, the court found...